82 S.W.2d 63 (Mo. 1935), State ex rel. Kramer v. Schwartz

• Citation: 336 Mo. 932,82 S.W.2d 63
• Docket Number: .
• Date: 17 April 1935
• Parties: State of Missouri at the Relation of Herman Kramer v. Gus Schwartz, Appellant
• Court: Missouri Supreme Court

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82 S.W.2d 63 (Mo. 1935)

336 Mo. 932

State of Missouri at the Relation of Herman Kramer

v.

Gus Schwartz, Appellant

Supreme Court of Missouri

April 17, 1935

Appeal from Cole Circuit Court; Hon. Nike G. Sevier, Judge.

Affirmed.

June R. Rose and Ragland, Otto & Potter for appellant.

(1) The validity of city ordinances passed in pursuance of the Zoning Enabling Act adopted by the Legislature in 1925, and found at pages 307 to 313 of the Session Acts of 1925, has been upheld, and the constitutional objections here urged against ordinances passed under said statute, have been overruled. State ex rel. Oliver Cadillac Co. v. Christopher, 298 S.W. 720; State ex rel. Nigro v. Kansas City, 27 S.W.2d 1030. Neither the petition nor the reply raises any other constitutional objection to the ordinances involved in this case, other than those above mentioned. (2) The Act of the Legislature of 1925 contains thirteen sections. The first twelve sections are in entire harmony with the title to the act, and under these twelve sections the act applies to all incorporated cities in Missouri. Section 13 of the act is a proviso which provides that the act shall not apply in counties having less than fifty thousand population. The above constitutional provision is designed to prevent the inclusion of incongruous and unrelated matters in the same measure, and to guard against inadvertence, stealth and fraud in legislation. International Shoe Co. v. Shartel, 279 U.S. 429; State ex rel. v. Hackmann, 237 S.W. 742, 292 Mo. 29; State v. Price, 229 Mo. 670. (3) Under the facts stated in the pleadings, it is proper for the city council of Jefferson City to pass an interim zoning ordinance to preserve the status quo until the final zoning ordinance could be prepared and passed. Miller v. Board of Public Works of Los Angeles, 198 Cal. 477, 234 P. 381. Interim zoning ordinances have also been upheld in the following cases: Lima v. Woodruff, 107 Cal.App. 285, 290 P. 480; McCurley v. El Reno, 138 Okla. 92, 280 P. 467; Fowler v. Obier, 224 Ky. 724, 7 S.W.2d 219; McQuillin on Domestic Corp. (2 Ed.) 1934, Cumulative Supplement, p. 431.

Irwin & Bushman, Harry L. Buchanan and W. A. Seibel for respondent.

(1) The zoning ordinance in question violates the provisions of Section 21, Article II of the Missouri Constitution in that it permits private property to be damaged without just compensation. State v. Christopher, 298 S.W. 727. (a) A city may be zoned under the police power or not at all. State v. Christopher, 298 S.W. 724. (b) The building of a little grocery store in a residence district is a convenience to the dwellers in such district. It is not contrary to the public health, safety, morals or general welfare of the community and the use of private property for such a purpose cannot be limited or restricted under the guise of the police power. Ignacuinas v. Risley, 98 N. J. L. 712, 121 A. 783; Smith v. City of Atlanta, 132 S.E. 66, writ of certiorari denied by U.S. Supreme Court, 271 U.S. 672; Eaton v. Town of Montclair, 133 A. 400; Fitzhugh v. City of Jackson, 132 Miss. 608, 97 So. 190; F. L. & P. Inv. Co. v. Dowling, 134 A. 555; Womans Kansas City St. Andrews Society v. Kansas City, 58 F.2d 593. (2) The whole Act of 1925 is void because it violates Section 53, Article 4 of the Missouri Constitution in that it is special and local legislation. (a) The Act of 1925 is local and special legislation because it excludes all counties having less than 50,000 population and does not include those counties not now having 50,000 population, but which hereafter may have 50,000 population. (b) Section 13 is a proviso which applies to the whole act. 25 R. C. L., pp. 986-987; McDonald v. United States, 279 U.S. 19, 49 S.Ct. 218; T. & P. Ry. Co. v. State, 52 S.W.2d 959. (3) The city of Jefferson being a municipal corporation deriving its powers from the Legislature, was without power or authority to pass an interim zoning ordinance not provided for the State Zoning Act. 6 R. C. L. 240; 19 R. C. L. 200; 43 C. J. 205; State v. McKelvey, 256 S.W. 479, 301 Mo. 1; State v. City of Nashville, 60 S.W.2d 162; Downey v. Sioux City, 227 N.W. 128. Moreover at the time respondent sought his building permit the appellant had not complied with the mandatory procedural requirements of the State Zoning Act with reference to public hearings, fixation of boundaries, etc. It was therefore not in a position to avail itself of the provisions or defenses contained in the act and should have issued the permit forthwith. State v. City of Nashville, 60 S.W.2d 163; 43 C. J., secs. 248, 249.

OPINION

Coles, J.

[336 Mo. 934] This is a proceeding in mandamus instituted in the Circuit Court of Cole County, Missouri, by relator, the respondent herein, seeking to compel the appellant Gus Schwartz, Building Inspector of Jefferson City, Missouri, to issue to relator a building permit authorizing relator to erect a store building upon a lot owned by him described as lot 1 of block A, Walinko Addition in Jefferson City. The petition for mandamus alleged that relator submitted to appellant building inspector the plans and specifications of a store building proposed to be erected by him upon the lot in question and that appellant duly approved such plans and specifications as in all things complying with the ordinances of Jefferson City relating "to the structure of new buildings within the corporate limits of said City" but that appellant "arbitrarily, wrongfully and without cause" refused to issue a building permit as requested. Appellant entered his voluntary appearance in the cause and consented to accept the petition in lieu of an alternative writ. The appellant filed a return to the alternative writ and thereafter the relator filed a reply to appellant's return. The cause was tried in the court below upon the facts set forth in the pleadings which were accepted by the court and agreed to by the parties as the true facts in the case. The trial court rendered a final judgment on the pleadings in favor of respondent and awarded him a peremptory writ of mandamus [336 Mo. 935] directing the appellant to issue the building permit sought by respondent. Thereafter appellant perfected an appeal to this court.

The appellant in his return to the alternative writ admitted that he had refused to issue the building permit applied for by respondent and sought to justify such refusal by setting up certain ordinances which were alleged in appellant's return to have been duly passed by the city council of Jefferson City designated in the record herein as Ordinance No. 3268 and Ordinance No. 3314. It is alleged in appellant's return that both of the ordinances in question were passed by

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the city council under the authority conferred by the Act of the General Assembly of Missouri of April 30, 1925 (Laws 1925, p. 307) as amended by the Act of April 7, 1927 (Laws 1927, p. 355). The Act of April 30, 1925, is the so-called Zoning Law of 1925 and the Act of April 30, 1927, is an amendment to that law.

Ordinance No. 3268, above mentioned, provides for the creation of a "City Planning and Zoning Commission;" directs how the commission shall be constituted and appointed; how it shall be organized; provides that it shall make certain reports to the mayor; authorizes it to employ "such city planners, engineers, clerks and other persons as may be authorized by the council," and defines the commission's powers and duties. It appears from appellant's return that the mayor of Jefferson City, pursuant to the provisions of Ordinance No. 3268 has duty appointed a zoning commission and that this commission, since its appointment, has been engaged in a study and survey of Jefferson City, has employed expert planning and zoning authorities and "has prepared a tentative zoning ordinance, and held public hearings thereon, placing the various parts of the city of Jefferson in districts and in every particular setting up a comprehensive planning and zoning system for the city of Jefferson." It must be remarked however, that there is no showing anywhere in the record that any ordinance has been passed by the city council of Jefferson City placing any restrictions upon the right of respondent to erect the proposed store building upon his lot in block A of Walinko Addition except Ordinance No. 3314 to be later referred to.

Appellant in his return sets forth Ordinance No. 3314, designated as "Interim Zoning Ordinance," in extense. Ordinance No. 3314 after a preamble reciting: that Jefferson City has previously appointed a City Planning and Zoning Commission which is "now working towards the completion of a permanent zoning ordinance;" that a zoning plan "as contemplated by the Act of 1925 cannot be made in a few days but will require months;" and "that the city council of Jefferson City recognizing that the City Planning and Zoning Commission can do little good if property owners are allowed to change conditions after the necessary information and data has been obtained and desiring to maintain the status quo of conditions while the City Planning and Zoning Commission is gathering [336 Mo. 936] data and information to be used as the basis of its report to the city council towards the enactment of a permanent zoning ordinance;" proceeds as follows:

"'Be it Ordained by the Council of the City of Jefferson as follows:

"'Section No. 1: Wherever less than twenty (20) per cent of the frontage on one side of a street between two intersecting streets is occupied at the time of the passage of this Ordinance by buildings used for commercial or industrial purposes, no additional premises or property shall be dedicated to or used for industrial or commercial purposes, nor shall any building be erected, altered or enlarged for use for commercial or industrial purposes by any person, persons, firm, partnership or corporation: PROVIDED: That where there are practical...